Di Iorio v Wagener - [2016] QCA 97

SUPREME COURT OF QUEENSLAND

CITATION:

Di Iorio v Wagener [2016] QCA 97

PARTIES:

PETER DI IORIO
(applicant)
v
GARY SEAN WAGENER
(respondent)

FILE NO/S:

Appeal No 3622 of 2016
DC No 46 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

District Court at Southport – Unreported, 29 March 2016

DELIVERED ON:

15 April 2016

DELIVERED AT:

Brisbane

HEARING DATE:

14 April 2016

JUDGES:

Morrison JA

ORDER:

The application is refused.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION, AND ABRIDGMENT – where the applicant brought proceedings in QCAT against the respondents and was ordered to pay $8,240 – where that judgment was registered in the Magistrates Court in 2010 – where the applicant sought leave to appeal this decision in the appeal division of QCAT with that application was dismissed – where a sequestration order was made against the applicant in 2014 and challenges to that order were made in the Federal Circuit Court and Federal Court of Australia – where the applicant remains an undischarged bankrupt – where the applicant sought an extension of time within which to seek leave to appeal to QCAT in 2014, four years out of time – where that application was refused by QCAT – where the applicant filed an application for leave to appeal to the District Court in February 2016, three months out of time – where the applicant did not have consent of his Trustee in bankruptcy to do so – where that application was dismissed in March 2016 on the basis that the District Court did not have jurisdiction to hear the appeal – where an application was filed in the Court of Appeal in April 2016 seeking an extension of time – where the application identifies the judgments as being appealed against as the District Court decision of 29 March 2016 and the Magistrates Court in 2010 – whether there is an adequate explanation of the delay – whether the interests of justice favour the grant of an extension of time

Bankruptcy Act 1966 (Cth), s 60, s 116
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 150

Pickering v McArthur[2005] QCA 294, cited
R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited

COUNSEL:

The applicant appeared on his own behalf
No appearance for the respondent

SOLICITORS:

The applicant appeared on his own behalf
No appearance for the respondent

MORRISON JA: Proceedings between Mr Di Iorio and the respondents commenced in Queensland Civil Administrative Tribunal (QCAT). Some time prior to 27 September 2010 judgment was given against Mr Di Iorio for $8,240. There have evidently been a number of subsequent proceedings or applications. Some of the detail to which I will refer comes from the decision of Wall DCJ in Di Iorio v Wagener & Anor, given on 29 March 2016, and the transcript of the hearing of that matter.
On 27…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] QCA 97
Decision Date: 15 April 2016

CaseChat Overview and Summary

The case of Di Iorio v Wagener involved the applicant, who had brought proceedings against the respondents in QCAT, and was ordered to pay $8,240. This judgment was registered in the Magistrates Court in 2010. The applicant sought leave to appeal against this decision in the appeal division of QCAT, but this application was dismissed. In 2014, a sequestration order was made against the applicant, and challenges to this order were made in the Federal Circuit Court and Federal Court of Australia. The applicant remains an undischarged bankrupt. The applicant sought an extension of time to appeal to QCAT in 2014, four years out of time, but this application was refused by QCAT. In February 2016, the applicant filed an application for leave to appeal to the District Court, three months out of time, and without the consent of his Trustee in bankruptcy. This application was dismissed in March 2016, as the District Court did not have jurisdiction to hear the appeal. In April 2016, an application was filed in the Court of Appeal seeking an extension of time. The application identifies the judgments as being appealed against as the District Court decision of 29 March 2016 and the Magistrates Court in 2010.

The legal issues before the court were whether there was an adequate explanation of the delay and whether the interests of justice favoured the grant of an extension of time. The court held that there was no adequate explanation of the delay and the interests of justice did not require that an extension of time be granted for the application for leave to appeal. The court emphasised that this was not a concluded view, but sufficient to make a preliminary assessment of the strength of the serious question to be tried, that is said to underpin the application for an injunction.

The court's reasoning was based on the fact that the applicant had not provided an adequate explanation for the delay in seeking an extension of time. The court noted that the applicant had been aware of the decision in QCAT since 2010 and had taken no action until 2014, and then only after a sequestration order had been made against him. The court found that the interests of justice did not require an extension of time, as the applicant had not shown any exceptional circumstances that would warrant such an extension. The court also noted that the applicant had not obtained the consent of his Trustee in bankruptcy to appeal, which was a necessary requirement.

The orders of the court were that the application for an extension of time was refused. The court did not grant an injunction as requested by the applicant. The court found that the application for an injunction was not supported by a serious question to be tried, and that the applicant had not shown any adequate explanation for the delay in seeking an extension of time. The court emphasised that this was not a concluded view, but sufficient to make a preliminary assessment of the strength of the serious question to be tried, that is said to underpin the application for an injunction. The court's decision was based on the fact that there was no adequate explanation of the delay and the interests of justice did not require that an extension of time be granted for the application for leave to appeal.

Orders

Orders of the court

The application is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Those matters cause me to reach the preliminary view that there is no adequate explanation of the delay and the interests of justice do not require that an extension of time be granted for the application for leave to appeal. I pause to emphasise that this is not a concluded view, but sufficient to make a preliminary assessment of the strength of the serious question to be tried, that is said to underpin the application for an injunction.Conclusion For the reasons given above the application is refused.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Di Iorio v Wagener [2016] QCA 97
PARTIES:	PETER DI IORIO (applicant) v GARY SEAN WAGENER (respondent)
FILE NO/S:	Appeal No 3622 of 2016 DC No 46 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension of Time Queensland Civil and Administrative Tribunal Act
ORIGINATING COURT:	District Court at Southport – Unreported, 29 March 2016
DELIVERED ON:	15 April 2016
DELIVERED AT:	Brisbane
HEARING DATE:	14 April 2016
JUDGES:	Morrison JA
ORDER:	The application is refused.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION, AND ABRIDGMENT – where the applicant brought proceedings in QCAT against the respondents and was ordered to pay $8,240 – where that judgment was registered in the Magistrates Court in 2010 – where the applicant sought leave to appeal this decision in the appeal division of QCAT with that application was dismissed – where a sequestration order was made against the applicant in 2014 and challenges to that order were made in the Federal Circuit Court and Federal Court of Australia – where the applicant remains an undischarged bankrupt – where the applicant sought an extension of time within which to seek leave to appeal to QCAT in 2014, four years out of time – where that application was refused by QCAT – where the applicant filed an application for leave to appeal to the District Court in February 2016, three months out of time – where the applicant did not have consent of his Trustee in bankruptcy to do so – where that application was dismissed in March 2016 on the basis that the District Court did not have jurisdiction to hear the appeal – where an application was filed in the Court of Appeal in April 2016 seeking an extension of time – where the application identifies the judgments as being appealed against as the District Court decision of 29 March 2016 and the Magistrates Court in 2010 – whether there is an adequate explanation of the delay – whether the interests of justice favour the grant of an extension of time Bankruptcy Act 1966 (Cth), s 60, s 116 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 150 Pickering v McArthur[2005] QCA 294, cited R v Tait [1999] 2 Qd R 667; [1998] QCA 304, cited
COUNSEL:	The applicant appeared on his own behalf No appearance for the respondent
SOLICITORS:	The applicant appeared on his own behalf No appearance for the respondent